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IN THE COURT OF JUSTICE OF THE EUROPEAN UNION
CASE C-507/17
GOOGLE INC Applicant
-v-
COMMISSION NATIONALE DE L’INFORMATIQUE ET DES LIBERTÉS (CNIL)
Defendant
ARTICLE 19 AND OTHERS Intervening parties
___________________________________________________________
WRITTEN OBSERVATIONS OF ARTICLE 19 AND OTHERS
___________________________________________________________
ARTICLE 19 and others are represented by Gerry Facenna QC and Eric Metcalfe,
Barristers; and by Guillaume Tapie, Avocat.
Submitted by:
Guillaume Tapie Avocat 3, rue Gay-Lussac 75005 Paris France
and
Gerry Facenna QC & Eric Metcalfe Barristers Monckton Chambers 1 & 2 Raymond Buildings Gray’s Inn, London WC1R 5NR United Kingdom
Service may also be made by e-curia or email:
Email: [email protected]
Date: 29 November 2017
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A. INTRODUCTION AND SUMMARY
1. Pursuant to Article 23 of the Protocol on the Statute of the Court of Justice, these
written observations are submitted by: (1) ARTICLE 19; (2) Human Rights
Watch; (3) Electronic Frontier Foundation; (4) Open Net (Korea); (5) Derechos
Digitales; (6) La Clinique d’Intérêt Public et de Politique d’Internet du Canada;
(7) Pen International; and (8) the Centre for Democracy and Technology;
(together, ‘the NGO Interveners’) on the questions referred for a preliminary
ruling under Article 267 TFEU by the Conseil d’État in its decision handed down
on 19 July 2017.
2. The NGO Interveners are organisations active in the defence of freedom of
expression and the right of access to information, across a range of jurisdictions
and constitutional traditions, including Canada, Latin America, South Korea, the
United States, and the Member States of the EU.
3. The questions referred by the Conseil d’État relate to the extent of the obligation
imposed on internet search providers to remove search results linked to a
person’s name, in compliance with the ‘right to de-referencing’ identified in Case
C-131/12 Google Spain.1 The questions arise in the context of a dispute between
Google and the Commission nationale de l’informatique et des libertés (‘CNIL’),
the national data protection authority in France, relating to whether CNIL was
lawfully entitled to require Google, in response to a valid request for de-
referencing, to remove the links at issue, without geographical restriction, from
all of Google’s domain names worldwide.
4. By its questions, the Conseil d’État asks, essentially, whether the right to de-
referencing requires a search operator:
(1) to deploy de-referencing to all of the domain names used by its search
engine, irrespective of the location from where a search is initiated;
1 ECLI:EU:C:2014:317
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(2) only to remove the links at issue from the results displayed on the search
engine’s domain name corresponding to the Member State in which the de-
referencing request is deemed to have been made (or, more generally, on
all of the domain names used by that search engine corresponding to
Member States of the European Union); and/or
(3) to use a ‘geo-blocking’ technique to remove the links at issue in response
to any searches deemed to be located in the State of residence of the
person benefiting from the ‘right to de-referencing’ (or, more generally, from
any IP address deemed to be located in one of the Member States of the
European Union), regardless of the domain name used by the internet user
conducting the search.
5. In summary, the NGO Interveners submit that, having regard to the need to weigh
the important interests of freedom of expression and the right of access to
information against the rights protected by Directive 95/46/EC:
(1) compliance with the ‘right to de-referencing’ obliges a search engine
provider to remove the results displayed for searches made within the State
of residence of the person exercising the ‘right to de-referencing’;
(2) it does not oblige a search engine operator to remove the results displayed
on all of the domain names used by its search engine worldwide; and
(3) a search engine operator should only be required to de-reference results for
searches made from within other Member States of the European Union
where a national court or data protection authority is satisfied that such a
step is necessary and proportionate in all the circumstances.
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B. RELEVANT LEGAL PRINCIPLES
The importance of freedom of expression as a fundamental right
6. Freedom of expression is universally recognised as a fundamental right: see,
e.g. Article 19 of the Universal Declaration of Human Rights (‘UDHR’), Article 19
of the International Covenant on Civil and Political Rights (‘ICCPR’), Article 10 of
the European Convention on Human Rights (‘ECHR’) and Article 11 of the EU
Charter of Fundamental Rights (‘the Charter’). Art 11 of the EU Charter also
specifically protects the right to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless of
frontiers, and the freedom and pluralism of the media.
7. Access to, and use of, the Internet is a fundamental aspect of freedom of
expression: see e.g. the 2017 report of the UN Special Rapporteur on Freedom
of Expression:
Individuals depend on digital access to exercise fundamental rights, including freedom of opinion and expression, the right to life and a range of economic, social and cultural rights (§76, A/HRC/35/22, 30 March 2017).
8. The UN Human Rights Committee has similarly observed that:
Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to extent that they are compatible with paragraph 3 [of Article 19 ICCPR] (General Comment No 34: Freedoms of opinion and expression, issued 29 July 2011 at §43).
9. For its part, the Committee of Ministers of the Council of Europe has stressed
the need for states to protect and promote Internet freedom (which it defines as
“the exercise and enjoyment on the Internet of human rights and fundamental
freedoms and their protection in compliance with the Convention and the
International Covenant on Civil and Political Rights”, Recommendation
CM/Rec(2016)5, 13 April 2016). Among other things, the Committee has urged
its member states to ensure that:
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Any measure taken by State authorities or private-sector actors to block or otherwise restrict access to an entire Internet platform (social media, social networks, blogs or any other website) or information and communication technologies (ICT) tools (instant messaging or other applications), or any request by State authorities to carry out such actions complies with the conditions of Article 10 of the Convention regarding the legality, legitimacy and proportionality of restrictions (ibid, §2.2.1)
10. In its 2014 annual study, the Conseil d’Etat expressed the view that access to
the Internet was a basic right on par with freedom of expression itself:
given the present state of methods of communication and with a view to the general development of online communication services for the public, as well as a view to the importance of these services for participation in democratic life and the expression of ideas and opinions, [freedom of expression] implies the freedom to access these services.
11. The Court of Justice has also recognised the importance of the internet and
electronic communications networks in the dissemination of information, and
their importance to the exercise of the freedom of expression: see, e.g., Case C-
131/12 Google Spain, §§36, 87; Joined Cases C‑293/12 and C‑594/12, Digital
Rights Ireland, §28; Joined Cases C‑203/15 and C‑698/15 Tele2 Sverige and
Watson, §§92-93, 101. In particular, in in Case C‑160/15 GS Media BV, §45, the
Court observed:
…it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information.
No hierarchy of rights
12. The NGO Interveners note that the EU Charter of Fundamental Rights does not
establish any hierarchy between the rights contained therein. Article 52(3) of the
Charter, moreover, provides that:
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In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.
13. As far as qualified Convention rights are concerned, the European Court of
Human Rights has made clear that the Convention “does not establish any a
priori hierarchy between these rights … as a matter of principle, they deserve
equal respect. They must therefore be balanced against each other” (Karaahmed
v Bulgaria [2015] ECHR 217, §92). In a succession of cases, the Strasbourg
Court has stressed the need for national authorities to strike “a fair balance”
between the rights freedom of expression and privacy where the two rights
conflict, see e.g. MGN v United Kingdom (2011) 53 EHRR 5 at §142:
In addition, when verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case, freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8, the Court must balance the public interest in the publication of a photograph and the need to protect private life (Hachette Filipacchi Associés v. France, no. 71111/01, BAILII: [2007] ECHR 5567 , §43, ECHR 2007 VIII).
14. In Fuchsmann v Germany [2017] ECHR 925, app no 71233/13, 19 October 2017,
for instance, the applicant complained that the refusal of the German courts to
grant an injunction against the website of the New York Times in respect of a
story mentioning his alleged ties to organised crime had breached his right to
privacy under art 8 ECHR. Among other things, the applicant relied on the Court
of Justice’s decision in Google Spain, arguing that “the reasoning regarding the
right to be forgotten could be transferred to the present case” (§27). Notably:
(1) The German courts had accepted that they had jurisdiction, because “the
online version of the newspaper was accessible from Germany, and
because it mentioned a German businessman in the article” (§13), although
the consequences were limited because “the online article was accessible
only as a result of a directed search with an online search engine” (§52).
The German courts also accepted that the news article “interfered with the
applicant’s reputation and personality right” (§15). However, the German
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courts held that it was necessary to balance such interests against that of
press freedom and, in particular, the “public interest in reporting on criminal
offences, including the suspicion of their commission” (§15). Ultimately, they
concluded that “the informational interest of the public outweighed the
concerns of protecting the applicant’s personality right, even taking into
account that such reporting might seriously damage his private and
professional reputation” (§18, emphasis added).
(2) For its part, the Strasbourg Court held that the applicant’s case required “an
examination of the question of whether a fair balance has been struck
between the applicant’s right to the protection of his private life under Article
8 of the Convention and the newspaper’s right to freedom of expression as
guaranteed by Article 10” (§32), having regard to its established criteria in
the context of balancing competing rights (§34).2 The Strasbourg Court
concluded that the German courts had properly taken the relevant criteria
into account and there were no strong reasons for substituting its own view
for those of the national courts (§54). Accordingly, there had been no
violation of art 8 in the applicant’s case (§55).
15. The same balancing approach applies in respect of these rights under EU law:
see, e.g., Case C-112/00 Schmidberger v Germany ECLI:EU:C:2003:333, §§80-
82 referring to the need to weigh, and strike a balance between, the rights of
freedom of expression and freedom of assembly, and competing EU free
movement rights.
16. In Case C-131/12 Google Spain v Agencia Española de Protección de Datos
ECLI:EU:C:2014:317, however, the Grand Chamber did not expressly refer to
the right to freedom of expression,3 nor any need for national authorities to strike
a fair balance between that right and the rights to privacy and data protection.
2 Among other things, the Strasbourg Court noted: “the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free (see Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, §45, ECHR 2009)”. (§39). 3 The only reference to freedom of expression is that contained in art 9 DPD, set out at §9 of the Grand Chamber’s judgment.
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Instead, it referred to “the legitimate interest of internet users potentially
interested in having access to that information”, observing that “in situations such
as that at issue in the main proceedings a fair balance should be sought in
particular between that interest and the data subject’s fundamental rights under
Articles 7 and 8 of the Charter” (§81).
17. In other words, the Grand Chamber did not frame the issue in Google Spain as
the need to strike a balance between two sets of competing fundamental rights,
but only between the “legitimate interest of internet users” in particular
information and “the data subject’s fundamental rights”. Although the Grand
Chamber accepted that the provisions of the DPD “in so far as they govern the
processing of personal data liable to infringe fundamental freedoms, in particular
the right to privacy, must necessarily be interpreted in the light of fundamental
rights” contained in the Charter (§68), it referred in terms only to articles 7 and 8
of the Charter (private life and data protection) but made no mention of article 11
(freedom of expression and information).
18. The NGO Interveners respectfully submit that the Grand Chamber’s failure to
give express consideration to the importance of freedom of expression, and
access to information, as a fundamental right, has had an unfortunate effect on
the development of EU law in relation to de-referencing. Specifically, it has
devalued the rights of millions of persons – both within the EU and beyond its
boundaries – to search for and access accurate information which has been
legitimately placed in the public domain by reference to the names of particular
individuals. In so doing, the case law has established an a priori hierarchy of
rights under EU law without explanation and without any adequate legal
foundation.
Any restriction on freedom of expression must be strictly proportionate
19. Union law provides that any limitation on fundamental rights for the sake of the
protection of the rights and freedoms of others must not only be necessary to
that end, but must also comply with the principle of proportionality: see art 52(1)
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of the Charter of Fundamental Rights. Any limitation must also “respect the
essence” of the right so limited.
20. Moreover, art 53 of the Charter provides that the Charter shall not be interpreted
as restricting or adversely affecting human rights and fundamental freedoms as
recognised by Union law and international law, including the European
Convention for the Protection of Human Rights and Fundamental Freedoms, and
by the Member States' constitutions.
21. It follows that any obligation on search engine providers to adopt de-referencing
measures must observe the requirements of necessity, proportionality and
consistency with the Convention right to freedom of expression. Neither the
principle of effectiveness under Union law (see e.g. Case 33/76 Rewe-
Zentralfinanz eG at §5) nor the right to effective judicial protection under art 47
of the Charter, moreover, authorise Member States or national courts to adopt
remedies greater than those strictly required to protect the right in question.
The relevance of the margin of appreciation enjoyed by national authorities in
striking a fair balance between competing rights
22. In respect of the balance between the rights to privacy and freedom of
expression, the NGO Interveners note that the national authorities of Contracting
Parties to the Convention are afforded a broad margin of appreciation when
seeking to strike a fair balance between those rights: see e.g. MGN v. United
Kingdom, cited above, §142:
The balancing of individual interests, which may well be contradictory, is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention (Chassagnou and Others v France [GC], nos. 25088/94, 28331/95 and 28443/95, BAILII: [1999] ECHR 22 , §113, ECHR 1999 III).
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23. In Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland [2017] ECHR
607, app no 931/13, 27 June 2017,4 the applicant media companies had sought
to publish tax data concerning individuals, which had been made available to the
public by the relevant authorities. In Case C-73/07 Tietosuojavaltuutettu,
EU:C:2008:727) the Court of Justice had concluded that the activities of the
applicants constituted the “processing of personal data” within the meaning of art
3(1) of Directive 95/46 but that it was a question for the national courts as to
whether the applicants’ actions could be classified as “journalistic activities”
within the derogation under art 9 of the Directive. The Finnish Supreme
Administrative Court subsequently held that they were not. The Grand Chamber
of the European Court of Human Rights concluded that the Finnish courts “gave
due consideration to the principles and criteria as laid down by the Court’s case-
law for balancing the right to respect for private life and the right to freedom of
expression” and that the Finnish authorities “acted within their margin of
appreciation in striking a fair balance between the competing interests at stake”,
finding that there was no violation of the applicant companies’ rights under art 10
ECHR (§§198-199).
24. Union law similarly recognises a margin of discretion for national authorities in
determining whether a fair balance has been struck between competing rights:
see e.g. Case C-112/00 Schmidberger v Germany ECLI:EU:C:2003:333 at §§80-
82. In Case C-36/02 Omega ECLI:EU:C:2004:614, for example, the Court held
that the assessment of whether a restriction on a particular economic activity (in
this case, games of laser-tag) was proportionate did not require unanimity among
Member States, noting, in particular, that it is not necessary for all member States
to share the same conception of to “the precise way in which the fundamental
right or legitimate interest in question is to be protected”, and that “the need for,
and proportionality of, the provisions adopted are not excluded merely because
4 ARTICLE 19, together with the Access to Information Programme and Társaság a Szabadságjogokért, were granted permission to intervene in the proceedings before the Grand Chamber’s judgment, arguing that the Finnish Courts failed to strike the correct balance between the right to freedom of expression and the right to privacy. Among other things, the interveners noted that the CJEU had “adopted a wide definition of journalism” when deciding the preliminary reference in 2008 and that “the public interest in publishing such information outweighed privacy considerations and, once publication had taken place, the information could no longer be regarded as inherently private” (§§118-119).
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one Member State has chosen a system of protection different from that adopted
by another State” (§§37-38).
25. In Case C-398/15 Manni (Approximation of laws Data protection Freedom of
establishment) ECLI:EU:C:2017:197, the applicant had been the sole director of
a company struck off the local register of companies in 2005 due to insolvency.
Relying on the Grand Chamber’s decision in Google Spain, he brought
proceedings against his local chamber of commerce in order to remove from the
companies register any reference to his involvement in the insolvent company.
The chamber of commerce relied inter alia on the fact that its register was
established by Italian law pursuant to Directive 68/151/EEC of 9 March 1968,
arts 2 and 3 of which required the “compulsory disclosure” of various details
concerning liquidated companies to be kept on the register. Following a request
for a preliminary ruling, the Court noted the: “considerable heterogeneity in the
limitation periods provided for by the various national laws” and the
corresponding difficulty of identifying a single period from which the inclusion of
such data in a companies register would no longer be necessary (§55). The Court
found that there was no right for natural persons to obtain the erasure of their
personal data from such a register as a matter of principle after a certain period
of time, and that this did not amount to a disproportionate interference with
fundamental rights under Articles 7 and 8 of the Charter (§57). While the Court
noted that there might be specific situations which justify restricting access to
personal data entered in such a register upon expiry of a sufficiently long period
after the dissolution of the company in question, the availability of such a remedy
“on the basis of a case-by-case assessment” was a matter for the national
legislatures (§§60-61).
26. The corollary of this margin of appreciation enjoyed by national authorities in
respect of the balance between the rights to privacy and protection of personal
data, on the one hand, and the rights to freedom of expression and access to
information, on the other hand, is that national authorities should be slow to
require search engine providers to adopt de-referencing measures beyond the
boundaries of the state where the affected person resides.
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27. Whether or not national authorities are best-placed to assess the existence of a
“pressing social need” capable of justifying an interference with the rights of
internet users in a particular country, national authorities are – by their nature –
poorly placed to strike a fair balance between the data protection interests of an
individual within their territory and the fundamental rights of internet users in all
jurisdictions other than their own. A requirement on search engine providers to
adopt – as a matter of course – de-referencing measures on a global or EU-wide
basis would interfere with the fundamental rights of internet users outside the
national jurisdiction in question and would also abrogate the margin of
appreciation enjoyed by the national authorities in those other jurisdictions. Such
a requirement would be tantamount to imposing an EU-wide or global
consensus, where none exists.
28. The absence of such an international consensus is clear when one considers the
comparative approach to de-referencing in jurisdictions outside the EU:
(1) In the United States, a right to de-reference publicly available information
on data protection grounds would be unconstitutional: the First Amendment
to the US Constitution guarantees the right of people to publish information
on matters of public interest that they acquire legally, even in the face of
significant interests relating to the private life of those involved (Smith v.
Daily Mail Publishing Co. 443 US 97 (1979)). This reasoning extends to
those situations where there is a significant governmental interest in
maintaining the confidentiality of the information in question (Oklahoma
Pub. Co. v. Distr. Court 430 US 308 (1977), where the information concerns
judicial procedures (Landmark Communications, Inc. v. Virginia 435 US 829
(1978) and even where the publisher of the information knows that her or
his source obtained the information illegally (Bartnicki v. Vopper 532 US 514
(2001). The First Amendment also guarantees the right to receive
information, including by means of a search engine (see e.g. Langdon v.
Google 474 F. Supp. 2d 622 (D. Del. 2007)). It is unsurprising, therefore,
that United States courts have rejected a right to be forgotten (Gates v.
Discovery Communications Inc 34 Cal.4th 679, 21 Cal.Rptr.3d 663). To the
extent that individual states have adopted de-referencing measures,
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therefore, these remain extremely limited in scope: see e.g. the California
law, called the “Eraser Law,” effective as of January 2015,5 which permits
the deletion of content created by minors, and applies only to minors
resident in California.6 The incompatibility of broad de-referencing
obligations with US law is especially relevant in the present case given that
all major search providers are established in the US;
(2) In Canada, the Canadian courts have yet to address directly the question
of whether the right to privacy under sections 7 and 8 of the Canadian
Charter of Rights and Freedoms may afford a right to de-reference publicly-
available information on data protection grounds. The Privacy Act 1983 and
the Personal Information Protection and Electronic Documents Act 2000
(PIPEDA) provide the primary statutory framework for the protection of
personal data in Canada. In Alberta (Information and Privacy
Commissioner) v. United Food and Commercial Workers, Local 401 [2013]
3 SCR 733, however, the Supreme Court of Canada considered whether a
provincial privacy law that prohibited trade unions from gathering
information on workers breaching a picket line struck “a constitutionally
acceptable balance between the interests of individuals in controlling the
collection, use and disclosure of their personal information and a union’s
freedom of expression” (§1). Although the Court agreed with concerns that
“new technologies give organizations an almost unlimited capacity to collect
personal information, analyze it, use it and communicate it to others for their
own purpose”, it concluded that broad restrictions on freedom of expression
for the sake of data protection were “not justified because they are
disproportionate to the benefits the legislation seeks to promote” (§20).
5 Section 22581(a)(1) of the California Business and Professions Code (as amended by Senate Bill No 568) requires operators of internet services, applications and websites who have actual knowledge that a minor is using its service to permit that minor “to remove or, if the operator prefers, to request and obtain removal of, content or information posted on the operator’s Internet Web site, online service, online application, or mobile application by the user”. Operators are not required to erase such information where any of the conditions under section 22581(b) are met, including where “any other provision of federal or state law requires the operator or third party to maintain the content or information” (s22581(b)(1)). 6 California Senate Bill No. 568, available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201320140SB568
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A similar approach has been adopted by Canadian provincial courts and
tribunals. In April 2016, for instance, La Commission d’accès à l’information
du Québec rejected the request of a former employee of a law firm for the
removal of all online references to her previous employment, noting that “Le
droit d’une personne de faire rectifier dans un dossier qui la concerne des
renseignements inexacts, incomplets ou équivoques n’est pas de l’ordre du
« droit à l’oubli » qui vise à effacer des informations des espaces publics”
(§65). If a right to be forgotten were to be recognised, Canadian law would
require local courts to determine the scope of protection accorded to
competing human rights such as privacy and freedom of expression based
on the Canadian social and cultural context and domestic human rights
framework (Douez v Facebook Inc, 2017 SCC 33, §§58-60).7 Canadian
courts would also expect other jurisdictions to treat Canadian remedies
implicating human rights abroad in the same manner (Google Inc v
Equustek Solutions Inc, 2017 SCC 34, §§45-46; Google LLC v Equustek
Solutions Inc, Case No 5:17-cv-04207-EJD (2017, US, Calif, N Dist), p 5);
(3) In Brazil, in No. 1.593.873 SMS v Google (2016/0079618-1) the Superior
Tribunal de Justiça rejected an application from a woman who wanted
Google to de-reference search results which linked her name to naked
images of her. Although the Court recognised that the applicant’s rights to
privacy and human dignity were engaged, it concluded that it would be
inappropriate to require search engines to exercise such a degree of control
over indexed content or engage in digital censorship. Instead, the
obligations to remove such content must fall on the provider of the content
itself.
(4) In Chile, the Supreme Court in ruling No. 76.421-2016 of November 22
2016 upheld Google’s appeal against a Court of Appeal ruling that its search
results – which related to an individual who had been identified as a gang
member by a news website El Mercurio Online – were not protected by the
7 As the Supreme Court of Canada noted in Douez: “local courts may be more sensitive to the social and cultural context and background relevant to privacy interests of British Columbians, as compared to courts in a foreign jurisdiction. This could be important in determining the degree to which privacy interests have been violated and any damages that flow from this” (§60).
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right to freedom of expression. The Supreme Court reversed the Court of
Appeal’s order, which had required Google to de-index the information by
reference to the plaintiff’s name. More recently, in case No. 11.746-2017 of
9 August 2017, the Supreme Court upheld a lower court’s decision to refuse
a de-referencing request from an individual who had been convicted of
sexual assault, theft and battery. The appellant had complained that,
although his criminal record had been expunged in 2014, news reports from
2008 were still visible online. The Supreme Court explicitly concluded that
“there was a public interest in the information being known and that freedom
of information prevails over the right to honor and privacy invoked by the
appellant” (“es claro que existe un interés público en que la información sea
conocida, razón por la cual, la libertad de información prevalece sobre el
derecho a la honra y a la privacidad que invoca el recurrente” (§7));
(5) In T-4296509 Acción de tutela instaurada por Gloria contra la Casa Editorial
El Tiempo (14 July 2015), the Constitutional Court of Colombia declined to
recognise a right to de-reference publicly-available information on data
protection grounds. In proceedings brought against El Tiempo, the country’s
main newspaper, a Colombian citizen pointed out that his right to privacy
had been violated by the publication and Google’s subsequent indexing of
a newspaper article in which the newspaper had mentioned his participation
in a crime. The Constitutional Court, however, held that internet
intermediaries such as Google are not responsible for breaches of basic
rights by a third party such as a newspaper. Moreover, having accounted
for possible offenses against freedom of expression, the Court concluded
that ordering a search engine to block results would constitute a form of
excessive intervention (contrôle) and would turn a search engine into a
censor of content posted by the user; this blocking would infringe on the
guiding principles of equality of access, of non-discrimination, and of
diversity (pluralisme) that must be applied to the Internet;
(6) In South Korea, the Supreme Court in Decision 2014Da235080, decided
on 17 August 2016, rejected an application by a university academic for the
removal of details of his education and previous employment which had
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been posted by various third party websites. Among other things, the Court
noted that the academic’s personal information was already publicly
available via his profile on his university’s homepage. It therefore concluded
that the actions of the third party websites in republishing this information
did not breach either the academic’s right to self-determation of his personal
information nor the provisions of the Personal Information Protection Act;
(7) In Japan, the Supreme Court ruled in a case decided on 31 January 2017
that search engine operators were not obliged to de-reference search
results of a man who had been arrested in 2011 for child prostitution. The
Supreme Court ruled that the content of information, extent of damages, and
the social status of the person affected must be considered in making a
decision, and that, given all the circumstances of his case, “the need for
protecting individual privacy does not surpass the social significance of
retaining search results”;
29. More generally, the NGO Interveners note that none of the other regional courts
for the protection of human rights – the Inter-American Court of Human Rights,
the African Court of Human and People’s Rights, nor the Strasbourg Court –
have yet recognised a right to require search engine providers to de-reference
publicly-available information on privacy or data protection grounds. The same
is true of the other regional systems for human rights protection more generally.
The Council of Europe’s 1981 Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data, for instance, makes no
provision for de-referencing.
30. In March 2017, the Office of the Special Rapporteur for Freedom of Expression
for the Inter-American Commission on Human Rights noted that “international
human rights law does not protect or recognise the so-called ‘right to be forgotten’
in the terms outlined by the CJEU in the Costeja case” and expressed the view
that “the application to the Americas of a private system for the removal and de-
indexing of online content with such vague and ambiguous limits is particularly
problematic in light of the wide regulatory margin of the protection of freedom of
expression provided by article 13 of the American Convention on Human
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Rights”.8 The Special Rapporteur expressed particular concern about a proposed
right to de-reference information in the regional context, noting that “[i]n the
Americas, after many years of conflict and authoritarian regimes, individuals and
human rights groups have maintained a legitimate claim to access to information
regarding governmental and military activity of the past and gross human rights
violations. People want to remember and not to forget”.9
A general requirement to de-reference information on data protection grounds
on an EU-wide or global basis would be inherently disproportionate
31. The NGO Interveners acknowledge that, under EU law, the rights to privacy and
protection of personal data are fundamental rights alongside the rights to
freedom of expression and access to information. They do not exclude the
possibility that the de-referencing of publicly-available information on privacy
grounds may in certain limited circumstances be proportionate, e.g. to facilitate
the rehabilitation of a juvenile offender of petty criminal laws or to protect the
dignity of a victim of crime whose injury attracted public attention against their
will. The NGO Interveners nonetheless submit that a general requirement on
search engine providers to de-reference publicly-available information on an EU-
wide or global basis is an inherently disproportionate interference with freedom
of expression as a fundamental right. Specifically:
(1) As noted above, an obligation on search engine providers to de-reference
information beyond the particular jurisdiction in which the request arose
would necessarily abridge the possibility that national authorities in other
jurisdictions may strike a fair balance between the competing rights in a
different way;
(2) an obligation on search engine providers to de-reference information
forecloses the possibility of adopting less-restrictive measures, such as a
right to respond or to seek a correction. Such measures allow individuals to
8 Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Standards for a Free, Open and Inclusive Internet (15 March 2017) at §132. 9 Ibid, §34.
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present their own version of a story or to rectify factual errors without making
the information at issue more difficult—or even impossible—to locate. On
the other hand, the right to de-reference permits individuals to remove
(supprimer) information or make it much less accessible; this infringes the
right to freedom of expression in an excessive manner;10
(3) in almost all cases, the information in question is likely to be of national
relevance only. In the Google Spain case, for instance, it is unlikely that
anyone outside of Spain (and indeed many people within Spain) would have
been interested in the fact that the applicant in that case had been forced to
sell his property in 1998 due to social security debts. The effective protection
of his rights to privacy and data protection could, therefore, have been
achieved by way of a simple national delisting. In such circumstances, a
requirement to adopt an EU-wide or global measure as a matter of course
would be disproportionate. In this context, the NGO Interveners note that
95% of search engine users use their national domain extension;
(4) such a sweeping measure would not only interfere with the freedom of
expression of the publishers of the information subject to de-referencing, but
also the right of internet users in every jurisdiction to access the information
in question. The NGO Interveners recall that the right to conduct research
and access information is a fundamental right,11 of particular practical
importance in States where citizens do not enjoy a high level of human rights
protection. Nor does the right to protection of personal data guarantee to
individuals the absolute right to control access to information concerning
them: see e.g. Manni, cited above.
10 The NGO Interveners accept that the measure at issue is the de-referencing of information by reference to a particular person’s name rather than its outright removal. They are also mindful of the limits of such de-referencing, as highlighted by the High Court of England and Wales in Cartier International AG and others v British Sky Broadcasting Limited and others [2014] EWHC 3354 (Ch), in which that Court noted that “even if search engine providers de-index the URL or even the entire website, it will remain accessible on the internet. In particular, it would remain accessible to consumers who had previously visited the website and either had it bookmarked or could remember its domain name. It would also remain accessible to new consumers who were sent the link either in spam emails or via social networks” (§214). In most cases, however, the NGO Interveners consider that dereferencing amounts in practice to making the information in question unavailable. 11 See for instance International Federation of Library Associations and Institutions’ (IFLA) statement on the impact of the ‘right to be forgotten’ on libraries: https://www.ifla.org/publications/node/10320
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(5) In particular, individuals should not be empowered to restrict access to
information concerning them published by third parties, except when this
information has an essentially private or defamatory character or when the
publication of the information is not justified for other reasons. In other
words, personal information may equally “belong” to the public, in the sense
that the public should be able to access it. For example, the fact that a
person declared bankruptcy ten years ago is information concerning not
only that person but also her/his debtors. A principle by which an individual
would have the ultimate right to control this information does not take
account of the broader right of the public to share and receive information
even if that information is placed legally within the public domain.
Furthermore, if a piece of information is already in the public domain, there
exists an interest in preserving it and keeping it available for the goals of
research and archiving. The authorities responsible for the protection of data
themselves consider that the collection of historical and cultural data—
including data of a personal character—must be encouraged and treated as
a legitimate method of preserving data beyond the date of operational
usefulness. In the opinion of the NGO Interveners, a general requirement
on search providers to de-reference information on an EU-wide or global
basis is likely to have a considerable and malign effect on the legitimate
activities of numerous actors who use personal names over the course of
their research—activities of newspapers or NGOs relating to the research
of scandals, the denunciation of illegal practices, academic and historical
research, or even the research of names of cases before the courts.
32. The NGO Interveners also consider that a general requirement under Union law
to de-reference information on an EU-wide or global basis on data protection
grounds, without due regard for freedom of expression or access to information,
would set a dangerous precedent that may be adopted in jurisdictions in which
such fundamental rights are already under threat. The NGO Interveners urge the
Court to have regard not only to the consequences that its decision will have for
the fundamental rights of citizens and residents of the Union, but the influence
that its decision may have on the practices of regulatory authorities and the
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courts in numerous other countries, including countries that do not enjoy a high
level of protection for fundamental rights.
33. The NGO Interveners also note that there is a practical risk in Union law adopting
a sweeping requirement on search providers to de-reference information on an
EU-wide or global basis. Courts in other jurisdictions may well decline to give
effect to such measures, on public policy grounds.12 Within the EU itself, the
enforcement of the order of a national court obliging a de-referencing measure
would be subject to the public policy exception under art 34(1) of Regulation No
44/2001 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters: cf. Case C-559/14 Meroni v Recoletos Limited
ECLI:EU:C:2016:349 at §42; Diageo Brands BV v Simiramida-04 EOOD
ECLI:EU:C:2015:471, at §50. Beyond the borders of the EU, the NGO
Interveners note that a sweeping, extraterritorial de-referencing obligation
adopted without regard to the fundamental right of freedom of expression is liable
to be unenforceable on public policy grounds.13
C. CONCLUSION
34. For the reasons set out above, the NGO Interveners respectfully invite the Court
to answer the questions referred as follows:
(1) The ‘right to de-referencing’ does not require a search engine operator,
when granting a request for de-referencing, to apply the de-referencing to
all of the domain names used by its search engine, irrespective of the place
from where the search originated;
(2) The ‘right to de-referencing’ requires a search engine operator, when
granting a request for de-referencing, to:
12 See Case No 5:17-cv-04207-EJD (2017, US, Calif, N Dist), p 5) cited above: a US federal court
recently granted Google's request to declare a Canadian global de-indexing order unenforceable in the US. For an analysis of the decision, see here: https://www.eff.org/deeplinks/2017/11/us-federal-court-rejects-global-search-order 13 See e.g. Article 34(1) of the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007: “A judgment shall not be recognised … if such recognition is manifestly contrary to public policy in the State in which recognition is sought”.
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i. remove the links at issue from the results displayed following a
search conducted on the basis of the requester’s name on the
domain name corresponding to the Member State of residence of the
person making the request; and
ii. to use a 'geo-blocking' technique to remove the links at issue in
response to any searches deemed to originate from the State of
residence of that person, regardless of the domain name used by the
internet user conducting the search.
(3) A search engine operator is only required to de-reference such results for
searches originating in all of the Member States of the European Union
where a national data protection authority or court is satisfied that such a
step is necessary and proportionate in all the circumstances.
Submitted by:
GUILLAUME TAPIE
Avocat au Conseil d'Etat et à la Cour de cassation
GERRY FACENNA QC ERIC METCALFE
Barristers
29 November 2017